In brief - The waste industry has responded well to the impacts of COVID-19 in continuing to provide essential waste services throughout NSW. Regulatory activities have also continued despite restrictions as well as court activity, which has seen significant penalties and another goal sentence handed down.

A snapshot of the key 2020 events impacting the waste industry is below:

Two of these events warrant further comment:

1. Sentencing for knowingly supplying false and misleading information about asbestos waste disposal

Following the first gaol sentence being handed down for repeat waste offences in 2018, this year the Court has ordered another gaol sentence. In Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166, the NSW Environment Protection Authority charged two defendants with offences relating to knowingly supplying false and misleading information about waste. In this case, the offence involved asbestos contaminated soil which attracted a higher penalty.

The Court found that a term of imprisonment of 12 months was warranted in the circumstances of the individual defendant. A report is currently being prepared to ascertain whether it is appropriate for the sentence to be served by the defendant by way of intensive correction in the community under the supervision of Community Corrections. Monetary penalties in the amount of $450,000 against the company were also ordered.

2. Sentencing for transporting and disposing of waste at sea

Generally speaking, in the waste industry, criminal charges for (a) transporting waste to a place that could not lawfully be used as a waste facility and (b) using a place as a waste facility without lawful authority are commenced by the NSW Environment Protection Authority. Such charges typically relate to vehicles transporting waste to a site that does not have the relevant approvals.

However, in an unusual prosecution this year, Transport for NSW as the prosecutor charged two defendants under the Protection of the Environment Operations Act 1997 (NSW) in relation to waste (including pontoons) that had been unlawfully transported to sea and sunk to the seabed. The case was Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King [2020] NSWLEC 112.

The defendants pleaded guilty to the two offences and were fined in total $133,000. A publication order was made as well as orders for the defendants to pay the costs of the prosecutor. The facts of this case appear to be a first.

What will 2021 bring?

Waste energy generation and the diversion/capture of useful materials from the waste collection chain and the implementation and roll out of new technologies in this area are expected to be a continued area of focus and investment in 2021.   

There are a number of State Significant Projects in the pipeline for energy from waste that are being assessed by the NSW Department of Planning, Industry and Environment. The Department even has a webpage devoted to the topic. It appears to be a matter of time before one is approved, paving the way for more of these projects as landfills continue to be filled. 

On a somewhat smaller scale, the design and implementation of alternative methods to divert materials that would otherwise be sent to landfill continues to be encouraged through NSW EPA grants.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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